February 18, 2005

atheists need not apply

Should a Christian nation impose a religious test for holding public office? It's the ultimate in ecumenical or latitudinarian generosity: just require officeholders to declare their belief in God. Then you could confidently invoke the label Judaeo-Christian, without the fumbling I've notedbefore. Hell, you could admit Muslims and others, too. (Okay, so Buddhists would have a grievance. Boy it's hard for a Christian nation to please all the other religions. But let that go for now.)

The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and
judicial Officers, both of the United States and of the several
States, shall be bound by Oath or Affirmation, to support this
Constitution; but no religious Test shall ever be required as a
Qualification to any Office or public Trust under the United
States.

But we have dual citizenship: you're a citizen of your state and a citizen of the nation. So does federalism leave room for your state to impose religious tests? Some states rule out such policies. Since 1859 — that's two years before it was even a state —§ 7 of the bill of rights of Kansas's constitution has said this:

The right to worship God according to the dictates of conscience shall
never be infringed; nor shall any person be compelled to attend or
support any form of worship; nor shall any control of or interference
with the rights of conscience be permitted, nor any preference be given
by law to any religious establishment or mode of worship. No religious
test or property qualification shall be required for any office of
public trust, nor for any vote at any elections, nor shall any person be
incompetent to testify on account of religious belief.

No man shall be compelled to frequent or support any religious worship,
place or ministry whatsoever; nor shall any man be enforced,
restrained, molested or burthened, in his body or goods, or otherwise
suffer, on account of his religious opinions or belief, but all men
shall be free to profess, and by argument, to maintain their opinions
in matters of religion;
and the same shall, in no wise, affect, diminish or enlarge their civil
capacities; and the legislature shall not prescribe any religious test
whatever, or confer any peculiar privileges or advantages on any sect
or denomination, or pass any law requiring or authorizing any religious
society, or the people of any district within this State, to levy on
themselves, or others, any tax for the erection or repair of any house
for public worship, or for the support of any church or ministry, but
it shall be left free for every person to select his religious
instructor, and to make for his support, such private contracts as he
shall please.

I
don't suppose anyone imagines that Kansas or West Virginia are bastions
of bigoted atheism or secular humanism. That would be
nonsensical. So what are they up to?

Their constitutions follow the classic liberal recipe: make the state
blind to the religions, or lack of religions, of its citizens, and you
do two fabulous things. One: you promote equality of citizenship.
No, not by levelling or homogenizing. Not for the first time on this
blog, I note that liberal equality has nothing to do with the right's
frequent scarecrow objections about envy, resentment, and the like.
Instead, equality here means ignoring irrelevant facts —
and it was a fabulous historical accomplishment, where "fabulous" means
both magical and excellent, to pull that off. Everyone used to take it
for granted that of course your religious identity was politically salient, of course
it was the business of the state to worry about such matters. Two: by
getting the clumsy and coercive paw of the state out of the matter, you
leave religion free to flourish. I'm happy to hazard the historical
generalization that countries with religious toleration and states that
refuse to tinker with establishing churches have more vibrant religious
communities than countries without such benign policies. And I'm happy
to count the modern USA as Exhibit One. So hip hip hurray for Kansas and West Virginia!

But then there's Arkansas. And South Carolina. And no doubt others, too.

No person who denies the being of a God shall hold any office in the
civil departments of this State, nor be competent to testify as a
witness in any court.

In 1961, the Supreme Court unanimously struck down a similar provision of Maryland's constitution. That action was brought by a man appointed as notary public who was refused his commission when he refused to declare his belief in God. Decades later, two citizens of Arkansas, not elected or appointed to public office, challenged their state's provision. But the 8th Circuit ruled (Flora v. White, 692 F. 2d 53 [1982]) that they didn't have standing. That was probably the wrong call on the standing issue: federal law does extend standing to taxpayers when there are dignitary harms under the establishment clause. But even so the court dropped a footnote agreeing that the state constitutional language probably couldn't be squared with the Supreme Court's ruling in the Maryland case. As indeed it can't. There's no doubt that the Arkansas provision is unconstitutional.

So I'm surprised that no one with a better claim to standing has challenged the Arkansas provision since then. But Arkansas isn't alone in having its constitution festooned with such a blatantly unconstitutional religious test. Article VI, § 2 of South Carolina's constitution says this:

No person who denies the existence of the Supreme Being shall hold any office under this Constitution.

No person who denies the existence of a Supreme Being shall hold any office under this Constitution.

I'll leave the more theologically minded to puzzle over the difference between the indefinite and definite articles. Both clauses were struck down by a state court in 1997 (Silverman v. Campbell, 326 S.C. 208). Both remain on the books.

Does it matter that some state constitutions still have such language? You bet. Imagine how we'd react if Alabama's constitution still said what it said in 1819:

The General Assembly shall have no power to pass laws
for the emancipation of slaves, without the consent of their owners, or
without paying their owners, previous to such emancipation, a full equivalent
in money for the slaves so emancipated.

It wouldn't be good enough to shrug and say, "well, anyway, it's not enforceable any more." Nor could you try the threadbare defense of the Confederate flag: "it stands for Southern pride and tradition, not racism or slavery." And don't bother pointing out that most people have no clue what their state constitutions say. That's true, but hardly decisive. We'd want the Alabama language off the books, pronto.

So too Arkansas, South Carolina, and whatever other states echo them should get rid of their unconstitutional disqualification of atheists. The state shouldn't be in the business of stamping unbelievers as second-class citizens. And no one should flirt with the idea that if the state repeals these religious tests, it's taking a stand against religion. What? You think there are no churches, no synagogues, no mosques, in Kansas and West Virginia? Or are you going to tell me with a straight face that without a constitutional seal of approval, they'll wither and die? Do you think I've done religion any damage by publicizing the dirty little secret of what those state constitutions say?

Sorry, but I won't buy shares in the Brooklyn Bridge, either.

TrackBack

TrackBack URL for this entry:http://www.typepad.com/services/trackback/6a00d834536ae669e200d8342297a753ef

Comments

Posted by: oliver

Now that nobody is a slave or can be given the legal status of a slave, Alabama could restore that clause without harm to anyone. You'd have to read race into it to see it as denigrating to any modern class of people. Meanwhile, the clauses against atheists are loaded guns that can be fired at any time.

A man in Nevada was blocked from developing his land for recreational and resort usuage,the reason,it would damage the habitat of a particular type of bug. Not having my insectology notes near me I won't take the time to identify and recall the bug's name. A farmer in California was fined because in working his land he accidentally killed a species of rat,lest you be alarmed,not the entire species just one rat. A 1994 congressional act required smaller water tanks for toilet bowls,thereby decreasing the size of the throne upon which King Demos squats. But hope shines thru the cracks of our barricaded doors,Don Herzog shines the light of liberty into our darkened lives. Zealotry is held at bay and the Brooklyn Bridge remains unsold. Now maybe we can spread that light of liberty in other directions

I'm going to answer dave, in the interest of improving the quality of these discussions.

The post sets the topic. "Whataboutery" is, by definition, a diversion from the topic. Hence the post cannot, by definition, be "whataboutery". Q.E.D.

If you're not interested in the topic of the post, don't comment. If you'd like to see posts on other topics, enter your suggestions in the "Housekeeping" items. If we don't take your suggestions and you're dissatisfied, I will personally refund the entire cost of admission. (I'll even throw in the cost of setting up your own blog at blogspot.com to discuss your preferred topics.)

Correct me if I'm wrong here, but we're talking about state constitutional provisions that are clearly unconstitional, have been ruled unconstitutional, are subject to no current cases or controversies, are generally unknown to the public, and probably couldn't muster majority approval even if they were known to the public. My point was that this sort of thing is so far out in the weeds that it really ceases to be germane to political discussion. In Chicago, it's illegal to fly a red or black flag in a parade. Once upon a time, there might have been interesting political discussion about this law, relating to the place of communists and anarchists in the civilized body politic. However, after a century of the law being unenforced, unenforcable, and basically unknown, there's no political discussion left in it. Sorry if I wasn't clear.

Dave writes: "However, after a century of the law being unenforced, unenforcable, and basically unknown, there's no political discussion left in it. "

I think the point is that just as many states did, and still do, keep racist laws on the books long after they were unenforceable, as a protest against the end of Jim Crow, and just as it would have been -- and sometimes still is -- difficult to get public support for a legislative or referendum repeal of those provisions, we also have these anti-atheist provisions. And if anyone started trying to repeal them, that person would be attacked as anti-God, *even though* most of the people attacking him would not try to argue that the provisions are in fact enforceable. In fact, it would probably spark a backlash akin to the anti-gay-marriage backlash, in which a constitutional amendment permitting religious tests would be proposed.

>in which a constitutional amendment permitting religious tests would be proposed.

Exactly. Proposing constitutional amendments is exactly what happens when political issues die. It's a classic sign of surrender, as constitutional amendments essentially never pass, and only get proposed when legislative or judicial remedies are impossible. 99 times out of 100, proposal of a constitutional amendment means that the cause is permanently lost.

I'm predjudiced. The point was,I didn't think it needed explaining, was twofold;a] we,ve traveled the 1st amend route before. b] there are other things to be concerned with. To carry on for just a moment,the religious zealots knocking on the door bit is hold hat. As to whataboutery I think upon occasion I've spotted some here and there by the hosts. That being said I will tahe up David V's suggestion on the Housekeeping area. And I would prefer cash on the barrelhead as opposed to blog cost's if it comes to that,which I hope it don't

>>in which a constitutional amendment permitting religious tests would be proposed.

>Exactly. Proposing constitutional amendments is exactly what happens when political issues die. It's a classic sign of surrender, as constitutional amendments essentially never pass, and only get proposed when legislative or judicial remedies are impossible. 99 times out of 100, proposal of a constitutional amendment means that the cause is permanently lost.

Well, state constitutional amendments, as we learned this November, can do quite well. The federal amendment may or may not pass, but the effectiveness of the backlash is pretty clear.

As DH asks -- would you say the same thing to a proposed repeal of an anti-miscegenation provision in a state constitution? or of a "no blacks in public office" provision? or of a provision allowing slavery?

I would suggest that far more aggravating than the peculiarities of various state constitutions is the fact that if an atheist ran for president they simply couldn't get the votes, no matter what the constitution says. I suspect that Arkansas and South Carolina voters don't elect many atheists, which is probably why no state judge has been petitioned to bar them from office.

Is "Judeo-Christian" a Fundementalist cover? I mean, Judeo-Christian, are they like Jews for Jesus? Is there Islamo-Christian traditions? How about Buddeo-Christian? Judeo-Marxist traditions? Was the "Holocaust" part of the Judeo-Christian tradition?

>The federal amendment may or may not pass, but the effectiveness of the backlash is pretty clear.

WRT the proposed gay marriage amendment, you'd be a fool to take less than 100-1 odds against it's passage. I'd lay at least 10-1 it won't reach the floor of the Senate. The votes aren't there, the states aren't there, and the demographic winds are against. So yes, the lack of effectiveness of the backlash is pretty clear.

>As DH asks -- would you say the same thing to a proposed repeal of an anti-miscegenation provision in a state constitution? or of a "no blacks in public office" provision? or of a provision allowing slavery?

I would say that if it takes more than a half hour, that legislators attempting such a repeal are wasting everyone's time and money. OTOH, wasting time and money is most of a legislator's job description, so overall I wouldn't much care one way or another.

Worrying about the symbolic impact of dead laws is a classic symptom of not understanding what politics is actually _for_.

I'm totally with Dave on this one. Don's post strikes me not only as bizarre, but as a particularly offensive kind of whining. In an attempt to convey exactly how much disdain he has for the religious right, Don has presented post after post after post riddled with the most stomach-wrenching liberal condescension. If I have to hear him ask - in his disgusting mock earnestness - what a Christian nation would be like one more time, I'll be hard pressed to find any reason to keep reading this. Some of the posters here - well okay, one: David V - seem interested in discussion and debate. Herzog seems interested in rolling out liberal shibboleths until we all die of boredom or frustration.

Always good to see focus on state constitutions. While most lie dormant, they contain rights that the federal constitution doesn't have, they avoid the federal activist judge problem, they contain rights in paralell with the federal rights that have fallen/are falling/may fall out of favor. It's my position that any rights-based lawsuit that doesn't have state constitutional claims is malpractice.
I also don't encourage suits that rely only on state con claims; it's best to have a winning federal claim or statutory claim lurking somewhere in the suit, because it is difficult to get courts to apply meaningful scrutiny to state claims. I happened to get a BA from an illinois university which required knowing the illinois constitution - it was an awakening.
Granted, I have not had any luck in building a lucrative practice, but I continue the quest. It's meaningful work.

Whining? It think it's LPFabulous who's doing the whining here. If he finds it condescending to draw attention to the articles of law in question, it is a mystery to me how he cannot find them utterly offensive towards atheists.

Whining? It think it's LPFabulous who's doing the whining here. If he finds it condescending to draw attention to the articles of law question, it is a mystery
Uh-huh. No mystery to me, as an atheist, waiting for L2R authors to post something pushing my interest. Hasn't happened lately. And not this moot point either.

As an atheist, I find this type of legislation both disturbing and contemptuous. And I don't understand why its existence and its conservative defense are supposed to be trivial and unimportant. Quite to the contrary, it is indicative of a fundamental difference between a liberal and a conservative conception of justice.

Mona: What? You have no interest in discussing wheter or not it is still illegal to bring a whale into Oklahoma or to carry pliers in your back pocket in Texas?

Things are happening in Syria and Iran. NK has the bomb and their Looney Toon version of Caligula is running the place. Powerline and Jimmy Carter are providing entertainment. Howard Freakin' Dean is now the head of the DNC!! This place has a Hell of a collection of talent all revved up and ready to argue and there's spittoon laws on the menu.

CDC writes: Mona: What? You have no interest in discussing wheter or not it is still illegal to bring a whale into Oklahoma or to carry pliers in your back pocket in Texas?

No, nor whether it is criminal of me to use foul language in front of woman or child in Michigan. Other things impact me more directly, and impact people at large. I tend to focus on these larger issues, silly me.

Perhaps we will soon have a thread with comments in which the academics who host this site will sponsor reports about the academy that actually alarm those of us who get swept up in the category of "the right." In the meantime, we have a sixteen millionth thread on gays/gay rights (hey, most of us are with you L2R authors, in case you have not got that yet), another place to call creationists idiots and non-scientists, but no outlet to discuss the primarily interesting thing about these L2R bloggers, to wit: that they are academics seeking discourse with "the right."

Seek better, guys. David Horowitz and NRO among many others online provide much fodder for relevant discussion of L2R issues pertaining to the academy, fodder which you could engage to great profit. Not saying that need be your only choice of post stuff, but also not saying it should be avoided in lieu of the boring and uninspired offerings of late. Not if you want those of us who started here to remain.

I am a Christian. I vote according to my beliefs. I would assume an Atheist or an Unitarian would likewise vote according to his or her beliefs. When a politician running for office makes his or her case, I determine whether or not his or her beliefs reflect my beliefs, and therefore I cast my vote for or against him according to what he or she believes. Friends, we live in a constitutional democracy where freedom or religion and speech is protected as a right of all citizens. I think both sides, liberal and conservative, ahould agree.

Pedro, I didn't notice that there were very many spirited defenses by conservatives of these archaic laws,only that it's a tired issue,both on this site and in the larger media world. As to the differnces between liberals and conservatives concerning justice you may wish to refer my 2/18 10:05am post. Therein you will discover that there are problems that affect atheisists,agnostics,and even religious fanatics.Insofar as the people offended against were questioned neither about their politics or religion and something quaint called private property was assailed you find an issue that captures the attention of all of us. Or should. Maybe we can set aside the concern for a handful of atheist southern legislators just long enough to wonder why Christmas carols are banned in the schools that are funded by non atheist parents and as fellow posters search for broader issues. David V suggested we E mail the housekeeping entry with our thoughts, a good and fair idea. For myself I must first summon up the courage to enter naked the lion's den and to sharpen the rusty tools of an inadequate rhetoric. To all of you,regardless of political belief,thanks. Whatever else it's been it's never been boring.

Father Ethan writes: "When a politician running for office makes his or her case, I determine whether or not his or her beliefs reflect my beliefs, and therefore I cast my vote for or against him according to what he or she believes."

Not even the spouse of a candidate shares all of the candidate's beliefs. The issues is which beliefs one choses to look for or value most highly, so it's more correct to say it's about priorities. For some people the religion of the candidate is a priority, just as for others their race is. I believe one of the classic liberal positions would be to say that so long as the race or religion of the candidate doesn't come with intolerance toward others, then neither of these factors should matter. But we're mixing eligibility for office with popularity.

Father Ethan: I don't think it would be fair for an atheist to complain that he or she might not win an election because of his or her beliefs. The problem is that there are laws that explicitly state that he or she cannot even run for office, and that makes him or her a second-class citizen.

Many of you rightly think that--by comparison with other exclusionary policies in place in society at large--this disparity in the rights of atheists and believers is not all that important, or that it is unworthy of discussion. But there are some of us for whom it embodies many concerns about justice.

I'm in a relatively inarticulate mood right now, perhaps because I've been thinking about some monstruous mathematical structures that bear no relation with the real world whatsoever, and it is hard to explain myself clearly. But let me give it a try, even if I incur in the usage of the petulant word "isomorphism" simply because I can't think of any other way to explain things.

I guess I see an isomorphism between the situation of atheists in Arkansas with the situation of gay people in states which had (or have) the infamous sodomy laws (which have been enforced every so often). I also see a partial isomorphism between these situations and the stupid laws that segregated African Americans to the backs of buses. At all moments, someone with an isomorphic position to that which Mona takes here could say that it is ridiculous to discuss these minor injustices, because anybody reasonable like her doesn't mind them. At all moments, there were far more pressing problems to be addressed than the laws in question, their use, sparse or common, etc. At all points in time, there were nice, reasonable people advocating the organic growth of culture rather than the imposition of change on a large segment of society clearly informed by very bigoted ideas.

Isomorphic arguments are those which call for letting the views of some organically dictate whether interracial marriage is legal or not; whether atheists can hold office or not; whether women can vote or not, simply on the basis that the majority ought to be able to impose its will on the minority. This doesn't resemble libertarianism, but authoritarianism, albeit an authoritarianism of the proletariat or something of that sort, and I'm far more willing to back coercion if it restricts the power of others to exercise their prejudice in a coercive way, than if it is simply a means of giving voice to the prejudices of the majority. In other words, I'm not worried about hurting the feelings of the person who advocates that interracial marriages ought not to be allowed (on some of those timeless insights from tradition and religious knowledge). I'm worried about restricting the rights of people on the basis of the theoretical, abstracts considerations of that very sort of person who's feelings get hurt if one questions the validity of their ideas about interracial marriage.

Pedro, I don't mean to pick an argument with you only to question some of your assumptions,especially considering your current preoccupations. Organically nobody dictates to anybody,there is custom and tradition which maintains a type of restraint,of different sorts,on everybody. It also serves to protect freedoms untrammled by government. It is easy to take shots at these social or communitarian factors as they are of neccesity imperfect,how could they be otherwise,developed over time by past generations of humans and interpreted bythe present generation,all imperfect themselves. You must collide with these accepted beliefs when you look to change them thru law ,and so many people are suprised when they meet with resistance to these changes. It's all fine and good to talk of the rights of minorities but I would think the majority is still to be reckoned with,oterwise let's dispense with talk of democracy. It should be remebered that the terms majority and minority do not represent rock like monoliths,nonetheless we have so many designations of minorities I'm reasonably sure that nunerically at least they outnumber whatever is vaguely still referred to as a majority,which realizes itself primarily thru the electoral process. As to coercion,apart from the fact that it benefits the pols who live on strife,it assaults the things that bind a society,mentioned above. I assure you that ultimately a society is not bound together by a surfiet of law,it is only managed and controlled,to the end benefit of the controllers.

john t.: the end of slavery, the end of segregation, the end of the marginalization of women from voting, etc., did not and possibly would not have occurred in any organic way. People didn't just one day wake up and say to themselves: "gee, I've been a tad bigoted to-date: let us try out granting these minorities the rights they so vociferously and undeservingly demand, by way of magnanimity." What bothers me is this preoccupation with the feelings and sensitivities of bigots, and the disproportionate lack of empathy for those who are unjustly targeted by their bigotry. By the way, traditions are not simply organic agreements. They can be impositions, as slavery attests to.

Pedro, I'm glad you said"POSSIBLY would not have occurred in any organic way. I'll settle for that. Your examples of slavery etc are a mite different from the southern atheist mentioned in my earlier post,but then you rule out questions of degree don't you. I will note in passing that it was individuals acting in concert and not the Great Referee,gov't that created and gave full impetus to the civil rights movement,people changing society,and I do know about the civil rights that followed,that followed I emphasize. As to the rest I trust you will show some interest in people being deprived of the use of what they own,examples in 10:05 post,that you will search for and find something in the past that is not evil but actually beneficial,and consider that bigotry is not the scarlet letter worn by by all those taking positions contrary to your own. As to your last line,yes laws can become traditional,I was aware of that and thought I had mentioned imperfections and failings,rather than suggesting perfection.

I am a Christian. I vote according to my beliefs. I would assume an Atheist or an Unitarian would likewise vote according to his or her beliefs.

I'm not sure whether this assumption is warranted or not. Yeah, there are surely atheists and Unitarians who vote according to their beliefs, but as a normative question, I'm not sure they should. That all depends on what 'voting your beliefs' amounts to.

There are some ways I want the world to be that could only be justified by appeal to my atheism (e.g., I wish there were more atheists. Among other things, I think people would be more tolerant and it would be easier for me to find a date). Insofar as I don't think that atheism is the sort of thing all rational persons must accept, I would vote against a candidate whose policies could only be justified by appeal to his or her atheism. In a sense, this is just me voting in accordance with my beliefs about what it means to be a good citizen in a liberal democracy. I know many Christians who hold this attitude, but I'm pretty convinced that this isn't regarded as an ideal by many who claim to vote in accord with their beliefs.

To see how this plays out, I'm personally against the public display or religious monuments, but as I recognize that my reasons for disliking them aren't reasons that any reasonable person should accept, I find myself siding against those who seem bent on removing displays of the Ten Commandments from public parks. On the other hand, there seem to be a number of considerations that speak in favor of same-sex marriage and the ones that are (claimed) to speak against it appeal to assumptions I don't think we can expect all reasonable people to accept and think that Christians who find homosexuality morally objectionable should nevertheless be in favor of extending marriage to homosexual couples. When you say that people vote according to their beliefs, what are you getting at?

I'll venture an observation here that I hope won't pull down the wrath of the masses on my head: the post and the reaction to it reflect differing views of the importance of symbols. Don Herzog thinks it's awful that these things are still out there, even though they have no practical effect and are unenforceable. Lots of the posters think he's working himself up into a lather over something that is insignificant. How much do you pay attention to symbols? Does the fact that something is written hurt you even if it isn't enforced?

I'd like to point out, on the constitionality question, that as the original post says, the Constitution says:

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

For about 150 years, nobody thought this invalidated the state laws on religious tests. The Federal Constitution was, after all, about offices "under the United States", not under individual states. The current Supreme Court would no doubt say otherwise, but that's just their opinion, which is indefensible in light of the language of the Constitution, its coherence, its history, and the opinion of past, more honest Supreme Courts.

Whether state religious tests are a good idea is, of course, a separate matter.

I would assume an Atheist or an Unitarian would likewise vote according to his or her beliefs.

Well, I'm neither atheist nor Unitarian, but I'm not a Christian and I am a voter, so I'll take a stab at this one.

When I'm voting on propositions, referenda, etc., I vote according to my beliefs. When I'm voting on candidates for various offices, since a candidate whose beliefs synch exactly with mine is a pipe dream, I vote for the person I feel most closely shares those beliefs. He (or she) represents my voice in government, and I'd like that voice to be saying what I'd say as much and as often as possible. Note, however, that there's a world of difference between voting for someone who shares one's beliefs and attempting to prohibit from even running those who do not.

That said, while I find the state Constitution provisions Prof. Herzog mentions absurd, archaic, and unjust, I dinna fash meself over them much. They're like an appendix, present but irrelevant, and if they become a source of inflammation, they'll be removed.

I would assume an Atheist or an Unitarian would likewise vote according to his or her beliefs.

Well, I'm neither atheist nor Unitarian, but I'm not a Christian and I am a voter, so I'll take a stab at this one.

When I'm voting on propositions, referenda, etc., I vote according to my beliefs. When I'm voting on candidates for various offices, since a candidate whose beliefs synch exactly with mine is a pipe dream, I vote for the person I feel most closely shares those beliefs. He (or she) represents my voice in government, and I'd like that voice to be saying what I'd say as much and as often as possible. Note, however, that there's a world of difference between voting for someone who shares one's beliefs and attempting to prohibit from even running those who do not.

That said, while I find the state Constitution provisions Prof. Herzog mentions absurd, archaic, and unjust, I dinna fash meself over them much. They're like an appendix, present but irrelevant, and if they become a source of inflammation, they'll be removed.

I'm with Achillea. If this thing came up against a challenge, we all know what the outcome would be. Why should it matter if it's sitting on the books? In fact, how many people even know it's on the books? It's hard to talk seriously about the expressive effects of a law that no one knows exists.

john t: roughly speaking, if X is a heterosexual person, X can marry whomever X loves. If Y is homosexual, then Y cannot marry the person Y loves. That is a difference in the status of X and Y under the law, based simply on sexuality. (Likewise, if X believes in God, X can run for office in Arkansas, but otherwise he or she can be deemed unworthy of holding office.)

Now, often people accuse us liberals of caring too much about the feelings of people. I don't care about the feelings and sensitivities of X and Y. I care to see them have similar rights. It is conservatives who care about the sensibilities of old-fashioned, and indeed bigoted individuals, who wish to impose their conception of morality upon others. What is at stake for Y in the issue of gay marriage? At stake is a civil right, not only Y's feelings. What is at stake for Jerry Falwell? The validation of his ideology? Not really: he can keep his ideology, condemn gay marriage, and not marry a man. At stake is the power that his feelings about gay marriage have over people who do not share his feelings. And it is those feelings many libertarians here are concerned about.

I suppose many conservatives really would have been concerned about the feelings of the slaveholders during the civil war, and would have found it inorganic for people to impose upon them (whom tradition had put in a position of power) new ideas that "hurt" their feelings. Boy, oh, boy.

Finally, I preemptively dismiss the observation that to grant gay people the right to marry (or atheists the right to run for office in Arkansas) is a means of imposing unpopular views upon people. It simply isn't the appropriate contrast. You see, telling people they cannot marry or that they cannot run for office, or that they cannot sit in the front of the bus, is not equivalent in coerciveness to telling people that they can no longer impose these restrictions on people's behavior. It is the equivalent of telling white people that they can't ride in the front of the buses, telling heterosexual men that they can't marry, and telling Christians that they can't run for office.

Pedro, In Ken Burns documentary about the Civil War a photo was shown fo a young man who had lost all of both arms and both legs. Iron ganglia were affixed to where his limbs had been. That's how slavery ended,that and 600,000 dead. Small cost to an idealist. As to conservatives really concerned about hurting the feelings of slaveholders,go find them. Going to war may have been a seperate issue[see 1st sentence]but concern for the slaveholder,no. The general notion that we went to war SOLEY over slavery is pure bullshit in any case.The tensions between North and South go at least as far back as 1787 when the northern states were secretely negotiating with Spain to give them full access to the Miss. river,ah,selling the south down the river so to speak. As to imposing thru law one's view of morality,I do,t wish to be rude but that's a laugher. Is there anything a liberal doesn't wish to cover by law? Granted so called centrists and conservatives are somewhat infected by the disease as well but I think you can guess what my general position is. I've commented before and so have others ont the viablity ,premises,and resistance to gay marriage,won't do it yet again.Marriage,flawed yes,but to valuable to be treated as a political/social experiment. We all of us give something up to live in a society that has enough benefits,moral and political goods and freedom to enable us to weigh and chose our citizenship,we in effect vote with our feet. In the county in which I live I am represented by a gay man,with a partner no less,with adopted children no less. And guess what I live my life and he lives his and as far as I can tell we're both happy. I really must close down. You seem unwilling to grant credence to the many posts stating the comparative triviality of Mr Herzog's point. But there just are bigger battles to be fought which is the reason I raised the issue of idiotic gov't incursions on private property,an issue that concerns us all. Good luck and I'm sure we'll exchange again

I am bothered by this discussion, somewhat. Not so much by the issue initially raised--there are plenty of laws on the books that have never been removed (think back to the original Walking Tall for a nice example). However, what bothers me is something completely different. Why is it that most people in this discourse have accepted the Judaeo-Christian label? Sure, there are atheists out there, but no one really made any comments on the premise of that particular misnomer. However, it appears to be a fundamental part of the issue. Any religious test would be monotheistic--and if you've followed the press and other public blather for the past two years, you'd know that this is the case.

But it would be a mistake to believe that this is the only problem. As a part of the Pledge of Allegiance debate, prayer—or silent meditation—in school, etc., one argument has been raised repeatedly—one does not have to pray or pledge to the God, but to a God, so, as long as he has some God he wants to refer to, the use of the language (or time) should not bother him. The opposition primarily came from secular sources (presumably atheists and those who believe in nearly absolute separation of Church and State). I found this positively shocking, as I expected opposition to arise from all non-Christians.

There are two historical sources for religious tests and religious language—one recent political and one with deeper roots. The new one is the cause behind the language in the Pledge—basically, the belief that Communists are godless (and, by extension, atheists are Communists). The old one derives from medieval European anti-Jewish (not quite anti-Semitic, as anti-Semitism per se was not invented until the 1880s) laws.

I don’t want to go into the details of these laws and make a full connection between them—some historian should have done this by now. But there is an ultimate irony in resurrecting these laws, whether they are prevented from taking force by the US Constitution or not. Last year, Alabama failed to pass proposition 2 and just this week Arkansas legislature rejected a bill reaffirming separation of Church and State.

The reason this is ironic is because it was the American colonies that first argued religious tolerance. [Much of what is below follows Shmuel Ettinger’s research.] Consider the statement by Roger Williams, founder of the Rhode Island colony, “True civility and Christianity may both flourish in a state or kingdom, notwithstanding the permission of divers and contrary consciences either of Jew or Gentile. … It is the will and command of God that, since the coming of His Son, Lord Jesus, freedom of religion, a permission of the most Paganish, Jewish, Turkish or anti-Christian conscience and worship be granted to all men, in all nations and all countries.” [Never mind that this comes from an essay published in London in 1644—the sentiment remained similar away from the Continent.] John Locke similarly commented, “Neither pagan, nor Mahometan nor Jew ought to be excluded from the civil rights in the commonwealth because of his religion.”

This, however, preceded secularization, which is largely associated with the Dutch Republic and the French Revolution. The Dutch Republic was in a difficult position since gaining independence from Spain because it incorporated significant elements of the Catholic culture of Spain, the Spanish and Portugese Marranos, spreading Reformation movements from Germany and England. The Marranos were particularly important because many of them returned to Judaism and they provided a significant part of the financing for most of the economic activity in the Republic (as well as major loans to William of Orange). The Dutch Republic was also the first to experience a wave of secularism, which also came from the Marranos—several prominent members of the community, faced with a difficult decision whether to restore their original faith or to persevere in the one to which they were forced to convert decided to choose neither. Some did so quietly, some were quite outspoken on the subject. Baruch Spinoza was excommunicated from Judaism just for such views.

Holland had officially recognized the Jews as legal subject of the Republic as early as 1657. Religious tests, however, remained valid for public office-holders and under certain other circumstances. By 1740, Jews were naturalized in the British American colonies and were permitted to omit the words “upon the true faith of a Christian” in the naturalization oath. By 1826 the oath was annulled in the mother country as well.

Religious tolerance and separation of Church and State were ideas legally recognized as the effect of both the American and the French Revolutions. But, while the French recognition was doused by the Napoleonic code, which put higher priority on assimilation rather than emancipation of Jews, the American Constitution preserved these ideas for posterity. But never mind the Constitution. Jefferson’s 1786 Virginia Act for Establishing Religious Freedom.

On a different note, Soviet writers—be it fiction, humanities or the sciences—learned the hard way that including a few lines about Marxism and a quotation or two from Lenin’s Oeuvres prevented unnecessary hassle in getting publications past the censors. Most of those reading the publications knew to skip the flowery language praising the Communist Party and the founders of the totalitarian state. Many writers of Christian Europe in the Renaissance and later followed a similar pattern in addressing the Church. So it should not be too surprising to find an odd internal conflict in Jefferson’s document—on one hand, the document opens with religious (although not clearly Christian) references; on the other, it leaves no doubt of its intent:

Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporal rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors for the instruction of mankind; that our civil rights have no dependence on our religious opinions, more than our opinions in physics or geometry; that, therefore, the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to the offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; that it tends also to corrupt the principles of that very religion it is meant to encourage, by bribing, with a monopoly of worldly honors and emoluments, those who will externally profess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on the supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them.

Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.

And though we well know this Assembly, elected by the people for the ordinary purposes of legislation only, have no powers equal to our own and that therefore to declare this act irrevocable would be of no effect in law, yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.

The Act was drafted in 1777 and introduced as a bill in 1779. Encountering some religious opposition, the bill was stranded until January 1786. The passage followed a dramatic speech to the Virginia General Assembly by James Madison on June 20, 1785.

...We remonstrate against the … Bill [Establishing a Provision for Teachers of the Christian Religion],

... Because we hold it for a fundamental and undeniable truth, "that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considerd as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority. ...

Because ...The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.

Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entagled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

Because the Bill violates the equality which ought to be the basis of every law, and which is more indispensible, in proportion as the validity or expediency of any law is more liable to be impeached. If "all men are by nature equally free and independent," all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an "equal title to the free exercise of Religion according to the dictates of Conscience." Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions. Are the quakers and Menonists the only sects who think a compulsive support of their Religions unnecessary and unwarrantable? can their piety alone be entrusted with the care of public worship? Ought their Religions to be endowed above all others with extraordinary privileges by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these demoninations to believe that they either covet pre-eminences over their fellow citizens or that they will be seduced by them from the common opposition to the measure.

Because the Bill implies either that the Civil Magistrate is a competent Judge of Religious Truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: the second an unhallowed perversion of the means of salvation.

Because experience witnesseth that eccelsiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. ...

Because the proposed establishment is a departure from the generous policy, which, offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an Asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. ...

Because it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion has produced among its several sects. Torrents of blood have been split in the old world, by vain attempts of the secular arm, to extinguish Religious disscord, by proscribing all difference in Religious opinion. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assauge the disease. The American Theatre has exhibited proofs that equal and compleat liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. If with the salutary effects of this system under our own eyes, we begin to contract the bounds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruits of the threatened innovation. ...

...Because finally, "the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience" is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less dear to us; if we consult the "Declaration of those rights which pertain to the good people of Vriginia, as the basis and foundation of Government," it is enumerated with equal solemnity, or rather studied emphasis. ...

Furthermore, the Virginia Declaration of Rights, whose signing antecedes the signing of the Declaration of Independence by about three weeks, and to which Madison made a reference in his speech, states in Article XVI

That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

Another reference to religion occurs in Article III or the Articles of Confederation (1777):

The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

Had the “founding fathers” intended this to be a Christian nation, as some of the more pompous and festering of the conservative commentators have been suggesting, I suspect, there would have been far broader reference to religion in the Articles of Confederation. However, the only such reference is the mutual defense of the states should one of them be attacked “on account of religion”. And the documents from Jefferson and Madison certainly point to nothing less than a complete separation of Church and State—Madison goes so far as to claim that abrogation of this rule would have disastrous consequences, and the fact that Jefferson maintained interest in the passage of the Act for nearly 10 years points that this particular right was to him of utmost importance.

I am no historian or lawyer, but, it seems to me, that anyone who advocates a religious test of any kind, or argues that the United States is a “Christian Nation”, or, worse yet, that the “Founding Fathers” at any point intended the US to be a Christian Nation, is either a complete moron or a nefarious, ahistorical theocrat.

It is also clear that any law currently on the books that demands a religious test of any kind for any purpose was not intended to bar atheists or secularists (as some of the same theocrats might argue) but to prevent non-Christians from exercising the rights of citizenship. While they may not have been directed at Jews (although one has to wonder in some cases), they were clearly directed at former (or then-current) slaves, who may well have not been Christians. It certainly also would have excluded sects that are not a part of the mainstream Christian sectarianism and prohibit religious oaths. In short, they are intended to create exactly the kind of turmoil that Madison railed against.

I note that liberal equality has nothing to do with the right's frequent scarecrow objections about envy, resentment, and the like.

I enjoy reading Don's posts, because they are so lucid, and sometimes right on the money. Unfortunately, he trips up like every other ideologue in demonizing their rheotorical opponent by taking a subset and applying it to the whole. It's one of the reasons I resist any label attached to my personage, because then it makes me vulnerable to attacks that attempt to make me defend positions that are neither mine, nor is it a position of a sizable portion of the group's.

Herzog overturns the Constitution again, argues for theocracy. Of course he can't argue for his religion for there are no rational arguments for religion. But I bet his theocracy helps keep his 'lil lady in line.